Wednesday, 18 May 2011

Ken Clarke's ignorance of the law

Justice Secretary Ken Clarke got himself into trouble on the radio this morning with his remarks about rape, which appeared to suggest (oh the heresy) that not all rapes were of equal severity and that some rapes might therefore attract different levels of sentencing.

When pressed to justify his comments, he produced this example:

If an 18-year-old has sex with a 15-year-old and she is perfectly willing that is rape, because she is under age, she can’t consent, anybody who has sex with a 15 year old it’s rape.

Now this is legally incorrect. While the age of consent in the UK is 16, non-coercive sex in which one (or both) partners is 15 is not rape. It is unlawful sexual intercourse. Under s9 of the 2003 Sexual Offences Act, if one party is over 18 - the situation Ken Clarke described - it is defined as "sexual activity with a child". Under s5 it IS rape if the child is under thirteen.

It might be said that the distinction is a purely technical one, in that the American expression "statutory rape" - meaning consensual sex with a minor - is now widely used here. But Clarke did not say "statutory rape"; he said "rape". Moreover, he produced his example when challenged about low sentences in some instances of rape. The presenter, Victoria Derbyshire, referred to statistics suggesting an average sentence for rape of five years. Clarke replied that the statistics "include the 18 year old having sex with a 15 year old and they include date rapes, date rapes sometimes can be very confusing." Now this is clearly not the case. While below-age-of-consent cases would be included in general statistics for sex offences, they would be a fairly small percentage of the whole. And since such cases are not rape, they would not be included in rape statistics. They are entirely separate offences.

Clarke was either blustering, or ignorant of the law. Since he is a barrister by training, as well as having ministerial responsibility for the area, it's hard to believe that he can be so ignorant - and more than a little worrying if he is. A few hours later, he turned up on Sky TV to "clarify" his remarks. He told Adam Boulton that he didn't know whether sex where one party was over 18 and the other was 15 was rape or not.

You have an age of consent, and below that age, whether the girl has consented or not, it is a criminal offence ... It may be 13. I will check. What I was pointing out was that under age, you cannot consent and it is a serious criminal offence to have sex with a girl under the age of consent.

Puzzling. He now appears not to know what the age of consent is! It's not difficult, Ken. The age of legal consent is 16, but if there is actual consent it only counts as rape if the child is under 13. You were not wrong about sex with a teenager under 16 being illegal, you were wrong about it being rape.

It would appear that Ken Clarke is not just ignorant of the law that, as justice secretary, he is responsible for upholding; he is also badly briefed. Several hours passed between his interview with Victoria Derbyshire and that with Adam Boulton, more than enough time for his officials to remind him of the difference between rape and unlawful sex. Instead he appeared more confused than ever. Later still, he was interviewed by Jon Snow on Channel 4 News. Again he claimed that sex with a 15 year old "is rape". Astonishing.

While most attention today has been on Clarke's belief that some rapes deserve longer prison sentences than others (and does anyone really not think that, however politically difficult it may be these days to say so?) what I find just as troubling is his casual approach to the facts, his sheer unprofessionalism. A couple of years ago, Norman Tebbit said that Clarke's "biggest defect... is that he is lazy". A bit like Boris Johnson, though less stylishly, he assumes he can wing it, turning up to interviews underbriefed and sometimes plain ill-informed, relying on bluster to get him out of awkward questions. This is just about acceptable in an Opposition spokesman, but can be disastrous in a minister.

Hence today's embarrassment - because whatever one thinks of the proper punishment for rape, any switched-on politician would appreciate that it is a subject laden with booby-traps, one in which it is necessary to speak very carefully indeed, because whatever you say is liable to be twisted and used in evidence against you. Crass tautologies such as "forcible rape" - like Whoopi Goldberg's suggestion that Roman Polanski was not guilty of "rape-rape" - only damage those who utter them. Clarke gave the impression of airy unconcern with such niceties. Perhaps he's showing his age. He may genuinely be unaware of just how ideologically-charged a crime rape has become, how much anger it arouses, and thus how easy a target a politician who "misspeaks" on the issue becomes. But if so, one does wonder why he is still in the cabinet.